Israel needs to reform its judiciary

Why can’t Israelis have a say in who gets appointed to the court?

PEOPLE ATTEND a campaign event for Senator David Perdue (R-GA) and Senator Kelly Loeffler (R-GA), in Milton, Georgia, last week.  (photo credit: AL DRAGO/REUTERS)
PEOPLE ATTEND a campaign event for Senator David Perdue (R-GA) and Senator Kelly Loeffler (R-GA), in Milton, Georgia, last week.
(photo credit: AL DRAGO/REUTERS)
Next week, voters in Georgia’s runoff election will be deciding who controls the US Supreme Court. Conservative voters hope to retain the judicial status quo via Republican candidates while liberal voters are marshaling to possibly pack the courts or at least push it toward a more liberal philosophy.
Israelis, on the other hand, will not have that opportunity when they vote yet again in March. Since the founding of the state, the court has been tilted in one direction, to the Left. It’s been that way since Israel’s first justice minister, Pinchas Rosen, picked fellow Mapai buddies as judges, making his law partner, Moshe Smoira, a fellow German Jew, the court’s first president.
The only Jew on the British Mandate Supreme Court, Gad Frumkin, was denied an appointment by Rosen because he didn’t fit his ideological mold. Since then, one friend has brought another, and the Supreme Court has remained a bastion of that same clique and their ideological successors. Yes, occasionally a religious or right-wing judge gets nominated, but they are always kept in the minority as not to endanger the hegemony of the ideological Left.
Breaking this monopoly is tough. Unlike in the US where there is vigorous public debate and elections can decide the president who nominates and the senators who must consent to the appointment of judges, Israeli citizens have no voice in judicial appointments. Justices are selected by a committee made up of present Supreme Court justices, Israeli Bar and Justice Ministry representatives. It’s backroom politics.
Because a super-majority is needed, friends of friends, all the way back to Rosen’s time, will block anyone who does not care to be an old-time Mapainik. During Ayelet Shaked’s tenure as justice minister, she shook things up about a bit. Between cajoling and threatening judicial reform, some judges who were not Rosen clones did get appointed. Still, the vast majority of justices on the Supreme Court retain a Mapai-like judicial philosophy.
The swinging pendulum of the US Supreme Court creates an environment of debate between varied viewpoints. Justices Ruth Bader Ginsburg and Antonin Scalia would double-date and attend the opera. That friendship must have included vigorous legal debates between these two notable justices whose viewpoints were so different. Perhaps those conversations brought about compromise. With the Israeli court dominated by one ideology, the chances of jurists hearing diverse points of view and seeking compromise for the good of society are slim. The friends who have nominated friends are undoubtedly in an echo chamber of their own creation.
THIS BECAME clear to me when former Supreme Court president Dorit Beinisch visited California a few months after she finished her tenure. She attended a small meeting with some local rabbis at the local Israeli consulate. There were just a few of us, and as the meeting wore down, I began to schmooze with Justice Beinisch.
Finally, I asked her about her ruling invalidating the Tal Law – crafted by former Supreme Court justice Zvi Tal, one of the rare religious jurists – as a legal compromise on the drafting of yeshiva students. Beinisch’s ruling invalidating the Tal Law had put the Israeli political system into chaos, creating political tensions that continue to this day. I expected her to defend it with a legal explanation citing certain precedents. But instead, she simply said, “It wasn’t working. We needed to change it.”
At that point I decided not to push the matter, but I was flabbergasted. Whatever side of the issue you are on, “It isn’t working” is not a legal argument. My first thought was, “Who made you the Queen of Israel? And if you really feel that way, why not resign your position as president of the court, cross the street to the Knesset, and run for office?” Politicians propose bills to fix what “isn’t working.” Judges, on the other hand, define law. Clearly, Beinisch crossed the limits of her role.
When anyone criticizes the court for its lack of judicial restraint, the first reaction is, “You are putting democracy in danger.” Almost always, these voices come from the political Left, because it comes down to one simple fact: They can’t win at the ballot box, so they vilify anyone who challenges their judicial hegemony.
As long as the last remnants of Israel’s old Mapai Party have a super-majority, the court will remain unbalanced, and the relevance and respect for the court will only continue to deteriorate. Compromise and consensus are key, and finding middle ground is the glue that holds a diverse society together. As long as the court acts with judicial elitism, turning out rulings that shake society because they feel “it’s not working” instead of by judicial principle and compromise, Israeli democracy will remain at risk.

Rabbi David Eliezrie is president of the Rabbinical Council of Orange County, California. His email is rabbi@ocjewish.com